President Donald Trump nominated Judge Kavanaugh to the Supreme Court. Judge Kavanaugh’s rulings regarding a plethora of issues, including immigration, will come under scrutiny in the coming months. During his confirmation, Judge Kavanaugh’s immigration rulings will be analyzed, and will undoubtedly play a role in the process. In this post, I will analyze his rulings and offer some input on his future rulings regarding immigration.
Using a Westlaw search, I researched Judge Kavanaugh’s immigration rulings. In his 12 years on the DC Circuit Court of Appeals, he had issued two rulings relating to immigration. The first ruling in 2013, Int’l Internship Programs v. Napolitano, 718 F.3d 986 (D.C. Cir 2013) dealt with a narrow issue regarding payments to international visa holders under a program allowing them to work in the United States. The second case, Abtew v. U.S. Dept. of Homeland Sec., 808 F.3d 895 (DC Cir. 2015) dealt with a narrow issue under the Freedom of Information Act exceptions. These cases shed some light on his possible future rulings if confirmed to the Supreme Court.
In this case, International Internship Programs challenged the Department of Homeland Security’s rulings denying Q visa petitions to international internship applicants using its programs. The organization challenged the Department’s rule mandating that these international applicants be paid the same wage as similarly situated American citizens. The organization argued that this interpretation violated the rulemaking procedures of the Administrative Procedures Act and the Regulatory Fairness Act. These rules mandate that the Department had to issue notices as to the rules and their impact on small businesses.
Judge Kavanaugh, in upholding the interpretation and the lower court’s decision, reasoned that the decisions did not trigger these rules since they were informal adjudications and not rules.
In Abtew, an asylum applicant sued the Department of Homeland Security for its failure to produce certain documents under the Freedom of Information Act. Abtew requested the production of the asylum officer’s notes in his case. The District Court had denied his request. He appealed arguing that the document should have been produced.
In a decision upholding the District Court’s ruling denying production, Judge Kavanaugh ruled that the document was properly withheld since it fell under Exception No. 5 of FOIA production.
It is hard to predict future rulings by Justice Kavanaugh based on his very limited record on immigration rulings. However, one could foresee how his rulings may come out. Judge Kavanaugh seems to defer to agency interpretation of statutes and rules in the two cases cited above. This could shed some light on his future rulings.
For example, if the case of family separation makes its way to the Supreme Court, one could foresee that Justice Kavanaugh might rule for such policy, especially if the government coaches its argument in regulatory terms. Additionally, if the case for Deferred Action for Childhood Arrivals makes it to the Supreme Court, Judge Kavanaugh may rule that the program is unconstitutional, based on the Administration’s interpretation of the program.
All of these predictions are dependant on Judge Kavanaugh’s current record. He may surprise us when confirmed and rule in favor of immigration rights. However, elections have consequences, and such pick is definitely not the pick for which the immigration bar was hoping.
Contact us if you have any immigration questions.